Consider, if you will, a
multi-tower, multi-storie condominium complex under
construction in downtown Toronto (a stretch to be sure). An
employer has 50 employees working there, with each employee
working in multiple units, floors and towers each day.
Records are kept for most work that was planned, but not
always specifically identifying which workers did the work in each
individual unit or on each floor.
The employer receives an
application for certification on Wednesday at 4:55 pm at its
corporate offices in Markham, by which a construction industry
trade union has applied to represent a unit of its employees.
The office receptionist opens the package at 10 a.m. on Thursday,
realizes it seems important and runs it up the flag pole.
Just after noon the president and general counsel have seen it and
called the company's construction lawyers, who in
turn recommend Stringer LLP to assist. Now it's 12:30
p.m., the president calls a member of Stringer LLP's
construction labour law group. We explain the process, gather
enough information to consider key legal issues, determine the best
likely strategic approach and formulate a plan for our
response. It's now 1:30 p.m. on Thursday and the employer
has only until 5 p.m., Friday afternoon to gather information on
the comings and goings of all 50 workers, every minute of the
application date, consider the impact of that data in context with
potentially complex legal issues, and to use that all to
complete, deliver and file the response with all schedules.
Miss the deadline and the employer will likely be deemed
to have admitted the union's pleadings and certification is all
but a foregone conclusion.
It is in this context that we must
consider the, otherwise objectively neutral, change which the
Ontario Labour Relations Board has made to the response
form in construction industry applications for
certification. Effective August 31, employers must
provide more than a general name or address for job sites and a
separate schedule listing employees when filing a response,
which was the case in the past. Instead, they
must identify job sites more specifically "by
location", including floors etc. for multi-unit
structures. Moreover, in the schedules attached to the
response form where previously the employer only had to list the
employees at work on the application date, employers must now
identify on which specific sites and locations those employees
worked on the application filing date. This
sounds simple enough, and certainly unions will be grateful to
have more accurate work locations so they can focus their
investigations in preparation for litigation that may ensue.
Practically, however, this
potentially very cumbersome, additional requirement has been thrust
upon employers who already have very little time - only two
business days at most - to gather accurate information, retain
counsel, consider legal implications and strategy, and file a
complete response. Imagine in this context that records
of activities on sites are not always complete, accurate, or
specific (if they exist), and so tracing the activities and
whereabouts of a large workforce on such short notice, accurately,
and you may begin to put yourself in the shoes of an employer
facing this new requirement head on.
As the law stands today, employers
face an uphill battle if they miss a jobsite on their response form
and try to add it later. If the applying union
successfully prevents the employer's attempt to add a
jobsite later, the result is that an already gerrymandered
constituency of employees (made up of only those employees who were
at work in the proposed bargaining unit on the day the union chose
to file its application - which may be a Saturday or
Sunday), will potentially suffer the loss of additional
employees at work that day but unfortunately situated on sites or
lacations missed by the employer and so rejected as irrelevant
for purposes of the application. In other words, as a result
of innocent errors made in a severely truncated timeframe
(and/or in light of insufficient availability of information or
time to get it), employees may be disenfranchised and a union
certified that did not represent an accurate sample of the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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